专业团队

一、债权转让后债权转让人应该对债权的瑕疵负担保责任

为了保护债务人的利益，特别是在合同中既有债权又有债务的情况下，单纯转让债权很可能造成债务人利益的损害，所以我国《合同法》在规定在债权转让中赋予债务人抗辩权和抵销权。《合同法》第82条规定：“债务人接到债权转让通知时，债务人对让与人的抗辩，可以向受让人主张。”《合同法》第83条规定：“债务人接到债权转让通知后，债务人对让与人享有债权，并且债务人的债权先于转让的债权到期或同时到期的，债务人可以向受让人主张抵消。”是指债务人可以其对原债权人的一切抗辩权对抗债权人的受让人。具体包括以下内容：

1、法定的抗辩事由，是指法律规定的，合同一方当事人用以主张对抗另一方当事人的免责事由，根据《合同法》第117条的规定，不可抗力是唯一的法定抗辩事由。

2、合同订立后可以对抗原债权人的其他一切事由，例如，可撤销合同、原债权人的违约行为、原债权人的不当履行、原债权人对债务人免责的意思表示等均可以向受让人主张抗辩。

3、只要债务人对债权转让人有到期债权，此时债务人可以向债权受让人主张抵消。在两种情况下可以行使抵销权：一是债务人的债权先于转让的债权到期。二是债务人的债权和转让的债权同时到期，债务人也可以向让与人行使抵销权。

二、债权转让后债权转让人对债务人履行不能不承担担保责任

当合同债权全部转让的协议生效后，原债权人与债务人的债权债务关系不再存在，因而债的主体发生变化，由第三人与原债务人形成了新的债权债务关系。原债权人因转让协议的生效而完全退出原来债的关系，丧失债权人的地位，对债务人的不履行或者不适当履行，原债权人不再享有权利，当然对债务人履行不能也不负担保责任。在合同司法实践中，人们往往不易将合同债权的转让与第三人代为履行债务从法律和理论上搞清楚，容易将二者混淆，甚至个别人或者组织恶意以一个濒临破产的企业代为履行债务说成是债权的转让，从而逃避自己的债务。当然，如果将对濒临破产企业的债权转让给债权受让人后，债权转让人可以对债务人的履行不能不向债权受让人承担担保责任。

1、 After the transfer of creditor's rights, the transferor of creditor's rights should be responsible for guaranteeing the defects of the creditor's rights

In order to protect the interests of the debtor, especially in cases where there are both creditor's rights and debts in the contract, simple transfer of creditor's rights may cause damage to the debtor's interests. Therefore, China's Contract Law stipulates that the debtor is granted the right of defense and set off in the transfer of creditor's rights. Article 82 of the Contract Law stipulates: "When the debtor receives a notice of transfer of creditor's rights, the debtor's defense against the transferor may be claimed against the transferee." Article 83 of the Contract Law stipulates: "After the debtor receives a notice of transfer of creditor's rights, the debtor has a creditor's right against the transferor, and if the debtor's creditor's right expires before or at the same time as the transferred creditor's right, the debtor may claim offset against the transferee." It refers to the debtor's right of defense against the assignee of the original creditor against all defenses it has against the creditor. Specifically, it includes the following content:

1. The statutory defense refers to the exemption grounds provided by law for one party to a contract to assert against the other party. According to Article 117 of the Contract Law, force majeure is the only statutory defense grounds.

2. After the contract is signed, it can defend against all other reasons of the original creditor, such as revocable contract, breach of contract by the original creditor, improper performance by the original creditor, and the expression of the original creditor's intention to exempt the debtor, all of which can be defended against the assignee.

3. As long as the debtor has a due debt to the transferor of the debt, the debtor can claim offsetting against the transferee of the debt. There are two situations where the right of set off can be exercised: first, the debtor's claim expires before the transferred claim. The second is that both the debtor's claim and the transferred claim are due at the same time, and the debtor can also exercise the right of offset against the transferor.

2、 After the transfer of creditor's rights, the transferor of creditor's rights cannot be exempt from assuming guarantee responsibility for the debtor's performance

After the agreement to transfer all contractual rights takes effect, the debt relationship between the original creditor and the debtor no longer exists, resulting in a change in the subject of the debt, and a new debt relationship is formed between a third party and the original debtor. The original creditor completely withdraws from the original debt relationship due to the effectiveness of the transfer agreement, loses its status as a creditor, and no longer has rights to the debtor's non performance or inappropriate performance. Of course, the original creditor cannot and does not assume guarantee responsibility for the debtor's performance. In the judicial practice of contracts, it is often difficult for people to clarify the transfer of contractual claims and the performance of debts by a third party from a legal and theoretical perspective. It is easy to confuse the two, and even individuals or organizations maliciously use a bankrupt enterprise to perform debts as a transfer of claims, in order to evade their own debts. Of course, if the creditor's rights of a company on the brink of bankruptcy are transferred to the creditor's assignee, the creditor's assignor may not be exempt from assuming guarantee responsibility for the debtor's performance to the creditor's assignee.